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Tammie Davis, Individually and On Behalf of All Others Similarly v. Devanlay Retail Group

December 14, 2012

TAMMIE DAVIS, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFF,
v.
DEVANLAY RETAIL GROUP, INC., AND DOES 1 THROUGH 50, INCLUSIVE, DEFENDANTS.



ORDER

On June 25, 2010, Tammie Davis filed suit against Devanlay Retail Group, Inc. ("Devanlay") on behalf of herself and others similarly situated in the Superior Court of California, County of Placer. (Compl., ECF 1.) Davis alleged that Devanlay violated the Song-Beverly Credit Card Act, Cal. Civ. Code § 1747.08, ("Song-Beverly") by requesting and recording the personal identification information ("PII") of their retail store customers who pay with credit cards, including when Davis made a purchase at a Lacoste store operated by Devanlay. (Id. ¶¶ 2, 10, 14-21.) Devanlay removed the case to this court on June 27, 2011. (ECF 1.) On June 5, 2011, Devanlay moved for summary judgment. (ECF 20.)*fn1 Davis filed her opposition to the motion on July 11, 2012 (ECF 25) and Devanlay submitted its reply on July 20, 2012 (ECF 20). The court heard oral argument for Devanlay's motion for summary judgment on October 26, 2012. For the reasons set forth below, the court GRANTS Devanlay's motion for summary judgment.

I. BACKGROUND

Devanlay has written "Policies and Procedures" and a "Company Orientation Handbook" ("Handbook") that it provides to new Lacoste store employees during training, which are also available to all store employees in hard copy and through the store's intranet. (Decl. of Jennifer Jackson, ECF 39-5 ¶¶ 5-6, 13.) Both the Policies and Procedures and the Handbook contain the following language:

There are several state laws that prohibit retailers who accept credit or debit cards for purchases from asking customers for [PII] during a credit or debit card transaction. [PII] means information concerning the cardholder, other than information set forth on the credit or debit card, including, but not limited to, the cardholder's address, home or business telephone number, and social security number.

Additionally, there is nothing that prevents [Devanlay] from soliciting a customer's address and telephone number for a store's mailing list, so long as the solicitation is done separate and apart from the credit or debit card transaction. Therefore, requests for this type of information should only be made after the purchase has been processed and finalized, and the customer must be told that providing the information is completely voluntary.

(Id. Ex. A, ECF 39-6; Ex. B, ECF 39-7 (emphasis omitted).) In the Policies and Procedures, this language is followed by a chart explaining the "Client Capture Laws State by State." The chart indicates that in California, a cashier may not request, or require as a condition to accepting a credit/debit card as payment, that the cardholder write PII on the credit/debit card transaction form or otherwise; or that the cardholder provide PII, which [the cashier] then write[s], cause[s] to be written, or otherwise record[s] on the credit/debit card transaction form or otherwise [].

(Ex. A, ECF 39-6.) In the Handbook, the language is followed by a list of states, including California, in which the Handbook instructs that "[a cashier] can capture customer information AFTER the transaction has been processed." (Ex. C, ECF 39-8.) Devanlay tells its Lacoste cashiers during training that the transaction is processed once the customer has received his or her receipt. (Dep. of Jennifer Suzanne Jackson at 7, Ex. A, ECF 39-3.)

Davis visited Devanlay's retail store in Roseville, California on April 2, 2010. (Decl. of Tammie Davis ¶ 2, Ex. F, ECF 43-7.) She brought an item to the cash register to purchase it with her credit card. (Id. ¶ 3.) As Davis "was putting [her] credit card in [her] purse, [the cashier] asked [her], 'What's your [zip] code?'" (Dep. of Tammie Davis at 4, Ex. B, ECF 39-4.) Davis did not receive her merchandise until after the cashier requested her zip code. (Id. at 9.) At the October 26 hearing, the parties agreed that Davis did not remember whether the cashier had given Davis her receipt before asking for Davis's code.

II. SUMMARY JUDGMENT STANDARD

A court will grant summary judgment "if . . . there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). The "threshold inquiry" is whether "there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). The moving party bears the initial burden of showing the district court "that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The burden then shifts to the nonmoving party, which "must establish that there is a genuine issue of material fact . . . ." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585 (1986). In carrying their burdens, both parties must "cit[e] to particular parts of materials in the record . . .; or show [] that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact."

FED. R. CIV. P. 56(c)(1); see also Matsushita, 475 U.S. at 586 ("[the nonmoving party] must do more than simply show that there is some metaphysical doubt as to the material facts"). Moreover, "the requirement is that there be no genuine issue of material fact . . . . Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 247-48 (emphasis in original).

In deciding a motion for summary judgment, the court draws all inferences and views all evidence in the light most favorable to the nonmoving party. Matsushita, 475 U.S. at 587-88; Whitman v. Mineta, 541 F.3d 929, 931 (9th Cir. 2008). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no 'genuine issue for trial.'" Matsushita, 475 U.S. at 587 (quoting First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968)).

III. ANALYSIS

1. Devanlay's Policies Under ...


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